Excerpt:property - validity of notification - section 106 of evidence act, 1872 - appeal - notification made with regard to certain villages under andhra pradesh (andhra area) estates (abolition and conversion in ryotwari) act - validity of notification questioned by plaintiff on ground that villages in question were 'inam' villages - state contending that all these 'inam' villages were resumed and adduced extracts in support of resumption - notification had to be supported by showing that villages in question were 'zamindari' estates under act - burden of proving said information rests upon government - held, validity of notification to be considered after relevant evidence has been adduced by government.
- .....finding of the learned district judge on a twofold basis: firstly, he argued that there were no inam estates within the meaning of the act in the kalahasti zamindari; and secondly, that it was for the plaintiffs, who alleged that the villages were under-tenure estates, to prove that they were under-teunre estates. 9. we do not propose to examine the tenability of the first contention as that is not the basis on which the learned district judge has rested his decision. it would be sufficient to point out that section 1(4) of the act specifically contemplates a notification with regard to any zamindari, under-tenure or inam estate, which means any of the three categories of estates which are defined in section 2. 'inam estate'; 'under-tenure estate' and 'zamindari estate' are defined.....

Judgment:

Narasimham, J.

1. This is an appeal against the judgment of dismissal of the suit, O. S. 8 of 1957, by the District Judge, Chittoor. This suit was laid for a declaration that the notifications made under the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act 1948, hereinafter to be referred to as the Act with regard to the plaint schedule villages, were invalid. After the suit was filed, the State Government issued revised notifications classifying some of the plaint schedule villages as under-tenure estates under the Act. The trial was therefore confined to notifications with regard to 10 villages only, viz., Inagalore, Mannavram, Govindaraopalli, Polie Beemava-ram, Kandaragunta, Empedu, Ammacheruvu, Bassiddummallu and Vampalli, as zamin estates. The plaintiffs questioned the validity of the notifications, as, according to them, each of the villages was an under-tenure estate: under the Act, whereas the Government notified them as Zamin estates.

2. Issues relevant to the said contentions were tried as issue 2 and additional issue 1 framed thus:

'Issue 2: Are the villages detailed in the plaint schedule under-tenure estates?

Addl. Issue: 1. Whether the subsequent notifications No. 20 dated 12-11-1953 and No. 234 dated 13-7-1957 relating to plaint schedule villages are illegal or otherwise invalid for all or any of the reasons mentioned in the plaint?'

3. The learned District Judge upheld the notifications finding that the said villages were not shown to be under-tenure estates under the Act.

4. It is contended before us that the learned District Judge has not dealt with the case from the right perspective and further that sufficient material has not been placed before the Court to show that the notifications of the villages in question as zamin estates were correct. The learned counsel has further urged that the notifications in question as zamin estates cannot be supported by rejecting the case of the plaintiffs that they were not under-tenure estates. We consider that there is sufficient force in these contentions.

5. The learned District Judge has mainly relied on the description of the villages as 'sirkar villages' in Stratten's report as supporting the notifications of the villages in question as zamin estates. It is the plaintiffs' case that the villages in question situated within the Kalahasti zamindari were mam villages prior to the permanent settlement and separately registered under Madras Act 1 of 1876. The plaintiffs claimed that these were under-tenure estates as defined under the Act.

6. The learned District Judge rejected the contention that they were permanent under-tenure estates under the Act as they were re sumable inams. With regard to Empedu and Ammaacheruvu villages, he observed that a fourth part of each of these villages was resumed. With regard to Bassiddumallu, he observed that the whole of the inam was resumed. These observations were made with reference to the extracts from the inam Fair Registers, Ex., B. I (of Em-pedu), Ex. B. 2 (of Ammacheruvu) and Ex, B. 3 (of Basiddumallu). With regard to the other villages, the teamed Judge observed that they were Amaram grants and that as such grants were resumable, they could not be permanent under-tenures. Thus these conclusions were arrived at on a scrutiny of Stratten's report where these villages were described as sirkar villages and the extracts from the Inam Fair Registers relating to Empedu, Ammacheruvu and Bassiddunallu only.

7. Two questions arise: Firstly, whether the villages in question can be taken as zamindari estates under the Act by rejecting the plaintiff's case that they are under-tenure estates; and secondly whether the description in the Stratten's report is all the information available to support the notifications,

8. The learned Government Pleader supported the finding of the learned District Judge on a twofold basis: Firstly, he argued that there were no inam estates within the meaning of the Act in the Kalahasti zamindari; and secondly, that it was for the plaintiffs, who alleged that the villages were under-tenure estates, to prove that they were under-teunre estates.

9. We do not propose to examine the tenability of the first contention as that is not the basis on which the learned District Judge has rested his decision. It would be sufficient to point out that Section 1(4) of the Act specifically contemplates a notification with regard to any zamindari, under-tenure or inam estate, which means any of the three categories of estates which are defined in Section 2. 'Inam estate'; 'under-tenure estate' and 'zamindari estate' are defined under Sub-section (7), (15) and (l6) of Section 2 of the Act respectively. The learned District Judge did not conclude that the villages in question were zamindari estates by eliminating the other two categories. He concluded on the footing that they were not shown to be under-tenure estates,

10. As to the onus of proof, courts have always recognized a shitting of the burden in the matter of adducing evidence. There is a difference between burden of proof on the pleadings which remains constant and the burden of adducing evidence which may be shifting.

11. In the instant case, the plaintiffs have relied on the Stratten's reports, Exs, A.1, A-4 and A-5 to show that the villages in question were inam villages. It is not disputed that they were pre-settelement inams. The State relied on a description of the villages in the same reports, and would presume that all these inam villages were resumed or otherwise there would not be such a description. The State Government has, however, adduced extracts from the inam Fair Registers relating to Empedu, Ammacheruvu and Basiddumallu to show partial resumption of the first two and a whole resumption of the third. Such evidence has not been let in with regard to the other villages in question.

12. In this context, the learned counsel for the appellants has invited our attention to Section 3(d) of the Act. which says that:

'3. With effect on and from the notified dale and save as otherwise expressly provided in this Act .................... .... .......

(d) the Government may, after removing any obstruction that may be offered, forthwith take possession of the estate, and all accounts, registers, pattas, muchilikas, maps, plans and other documents relating to the estate which the Government may require for the administration thereof.'

The learned counsel has therefore contended that whatever record there be lies with the Government. Evidently, he suggests that the relevant information is within the knowledge of the Government and that the burden of proving the said information is upon it. This is what Section 106 of the Evidence Act expressly provides.

13. We think that the matter is not concluded by showing that the villages in question are not under-tenure estates. In our view, the notifications have to be supported by showing that the villages in question are zamindari estates under the Act. We agree with the learned counsel for the appellant that this is the right perspective which has to be borne in mind.

14. This was the approach made by the Madras High Court in P. Govindarajulu Naidu v. State of Madras (1959) 1 Mad LJ 323. That was also a suit for declaration that the notification of a certain village as zamindari estate was illegal and void. The plaintiff therein did not produce the inam title deed to show that it was a whole inam village. His contention that it was an under-tenure village was also rejected on the evidence. Albeit, the Bench held that there was no proof that the village was a zamindari estate.

15. A Bench of this Court in State of Andhra v. Kalahastheeswaraswami Temple, 1955 An WR 603 affirmed the decision of Venkalarama Ayyar, L. (as he then was) in Kalahastheeswaraswami Temple v. State of Madras, : AIR1954Mad498 . That was an application on behalf of the Kalahasteeswaraswami Devasthanam for the issue of a writ of mandamus prohibiting the State of Madras from taking possession of the village of Kalahasti. The village was notified under the Act as a zamin estate.

The contention of the petitioner was that it should be notified as an under-tenure and not as a zamin estate. The learned Judge took the view that the only question, which arose for determination, was whether the notification of the village Kalabasti as a zamindari estate was correct or not and that there was no need to decide in the said proceedings whether it should he notified as an inam estate or an under-tenure.

16. The learned Government Pleader contended that writ proceedings are different from a regular suit. But, it appears from the said case that a notification has to be justified.

17. We have to notice that in this particular case the Government issued a revised notification notifying most of the estates as under-tenure estates and it was expressly pleaded in the Government's written statement dated 27-1-1964 thus:

'It is admitted that some of these villages are agraharams and their clarification as under-tenure is under examination. When the matter is finally settled, an amendment to the original notification will be issued notifying the zamin and under-tenure villages separately.'

This makes us believe that the Government was uncertain at the material time.

18. In the peculiar circumstances of the ease, we refrain from expressing any opinion on the question which arises for determination in the appeal.

19. In our view the notification has to besupported by clinching evidence and we aretold that there would be such evidence available.We therefore set aside the judgment of dismissalof the suit and remand the suit for fresh disposalaccording to law, giving an opportunity to theparties to adduce relevant evidence. We make ifclear that we make no comment on the adequacyof evidence in the matter of proof of the pointin controversy. The costs of the appeal will abidethe result. The court-fee in appeal will be refunded